Did Indiana legalize cannabis? Yes. Kind of. Maybe.

A law passed in April 2017 allowed for patient possession of CBD but didn’t outline how people could acquire products.
Nate Chute/IndyStar

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Georgetown Market offers this example of cannabidiol oil, also known as CBD, Indianapolis, Friday, September 1, 2017. The oil is used by a variety of people, and medical testing is being done to determine its efficacy in treating seizures, and pain. (Photo: Robert Scheer/IndyStar)Buy Photo

A new Indiana law intended to legalize the use of a cannabis extract to treat epilepsy instead resulted in a massive crackdown on the product across the state, making it more challenging for those with severe medical issues to obtain it.

An IndyStar investigation has found that after the law passed in April, the Indiana State Excise Police confiscated products containing cannabidiol, also known as CBD, from 57 stores across the state. Cannabidiol is a nonpsychoactive substance in marijuana.

The problem: CBD may be perfectly legal.

After confiscating more than 3,000 products over the course of five weeks, excise police abruptly halted the practice in late June, when questions about the legality of the busts surfaced.

Now, public officials are pointing fingers at one another over who is to blame. Ultimately, the debate is likely to carry over into the upcoming legislative session — and it could become a proxy for a broader, far fiercer debate over full-blown medical marijuana legalization.

Indiana's new CBD law allows people diagnosed with treatment-resistant epilepsy to possess cannabidiol as part of a new state registry. Under the law, CBD products must contain less than less than 0.3 percent tetrahydrocannabinol, or THC, the compound in marijuana that produces a high.

The excise police, the law enforcement arm of the Indiana Alcohol and Tobacco Commission, thought the new law made it clear that possession of CBD for other purposes was a crime, and the crackdown ensued.

One of the products confiscated by excise police.(Photo: Provided by Cpl. Heather Lynch of the Indiana State Excise Police)

But some lawmakers and Indiana State Police, a different state law enforcement branch, have said it already was legal under a 2014 law that removed industrial hemp products from the state’s controlled substance statute. Some Indiana stores have carried a variety of CBD products for well over a year, including CBD oils, vaping liquid and candies.

The spate of excise busts at convenience stores, smoke shops and a Fresh Thyme store near Greenwood angered store owners who watched helplessly as excise officers removed tens of thousands of dollars in products from their shelves. Some lawmakers are even questioning the propriety of the excise police actions.

“It sounds like we’ve got an agency that is out of control,” said Rep. Jim Lucas, R- Seymour.

The confiscations also upset advocates of the law who use CBD products to treat their children’s seizures. They hoped the law would let people with epilepsy use the product without fear of prosecution. Instead, the law has made it more challenging for those with health issues to obtain CBD oil.

“That’s what makes you feel awful. You feel like you worked so hard to try to do something for people,” said Brandy Barrett, the mother of a 10-year-old boy with severe epilepsy. “I even heard from a few people that our legislation had messed it up for everybody, and that obviously wasn't our intent.”

Lawmakers said their intent was to protect people with epilepsy from prosecution, not to prompt a statewide crackdown. But they offered differing opinions about whether the product was already legal — an indication of just how confusing the state’s position on the substance has become.

The chaos has now prompted Indiana Attorney General Curtis Hill to get involved. His office is conducting a legal review with plans to issue a formal opinion on the legality of CBD products.

“There’s been confusion even within state government,” said Jeremy Brilliant, a spokesman for Hill. “Is this legal? Is this illegal? The goal is to bring clarity to this issue.”

CBD crackdown

The new CBD law, House Enrolled Act 1148, was controversial from the outset because some feared it was a first step towards legalized marijuana, a touchy topic in a conservative state. Similar bills failed in past years.

GOP lawmakers afraid of being seen as pro-marijuana resisted efforts to tackle the issue more comprehensively, so the law doesn't address the sale or distribution of CBD products.

“It was controversial topic due to fear from law enforcement that medical marijuana would be made legal,” said Sen. Randy Head, R-Logansport, who carried the bill in the Senate. “Simply getting the law passed that we did was a herculean effort.”

The result was a narrow bill that allowed epilepsy patients to possess CBD, but did not address how those patients would get the product.

“All we said was desperate parents that were seeking treatment would be free from prosecution,” said Rep. Bill Friend, R-Macy, who carried the bill in the House. “So the law is really silent on the legality.”

But an email obtained by IndyStar shows that a few weeks after Gov. Eric Holcomb signed the bill into law, an excise police commander referred to the new law and told officers they could begin seizing the product.

Prior to the passage of the new law, excise police hadn’t issued a single violation to stores selling CBD.

As excise officers fanned out across the state in mid-May, they cited the new law as justification for their confiscations, according to several incident reports obtained by IndyStar.

The police reports show that for five weeks, officers aggressively searched 57 stores and confiscated more than 3,000 CBD products, even as store owners routinely insisted that the products were legal. In some cases, store owners and clerks seemed better acquainted with the state’s CBD laws than the officers.

In several cases, officers incorrectly told store owners that a prescription was required to possess CBD. While the law does require a diagnosis for treatment-resistant epilepsy, it does not require a prescription.

In at least one Indianapolis case, a store owner showed police a lab report indicating that the products did not exceed the THC threshold and should be legal.

In another bust at a Bloomington smoke shop, the store owner called a representative from their CBD distributor, who told officers they “needed to know (their) job better.”

At a Fresh Thyme market near Greenwood, where an excise confiscation received some isolated publicity over the summer, a store clerk told officers they were “wrong regarding the products illegality,” according to an incident report. The officers told the store manager the clerk was no longer needed and she was sent away “in an effort to de-escalate the situation.”

During a June 12 investigation at Happy Daze Smoke Shop on the city’s west side, store owners refused to allow excise police to confiscate the products and even showed the officer the 2014 law that legalized industrial hemp, according to an incident report and one of the owner’s accounts.

The excise officers responded by citing the shop for “hindering enforcement” before taking what owners estimated to be $1,500 worth of products, much less than the nearly $3,000 some other stores lost.

“It didn't seem like they really knew what they were looking for,” said Jeff Shelton, one of the owners. “They weren’t very knowledgeable about CBD at all. They didn't know what the current laws were.”

In another display of their doggedness, excise police took the unusual step of expanding their search beyond the store’s premises. Officers obtained a warrant for a store owner’s house to search for more CBD products, turning up a baggie of marijuana and resulting in criminal charges.

The aggressive crackdown is discouraging to the parents of children with epilepsy.

Brian Bennett uses CBD oil to treat his 9-year-old son, Joe, who suffers from epilepsy. He has followed the law closely and testified before lawmakers.

“In my opinion, those seizures are all illegal,” he said. “That’s a clear abuse of power.”

Gray area

The backlash from the confiscations prompted an intervention by the governor’s staff. They called a meeting with excise and ATC leaders in late July — one day after WTHR-13 broadcast a story about the CBD confiscation at Fresh Thyme.

Shortly after that meeting, state law enforcement agencies began evolving their statements on the product’s legality.

Excise Police Superintendent Matt Strittmatter sent a July 27 email to officers putting a “moratorium” on confiscations from grocery, pharmacy and health food stores.

But he said the agency’s position “will remain that the products such as gummy bears, e-liquid, pills and other consumable products containing CBD oil and are sold in convenience stores are illegal until we are informed otherwise by the legislature.”

Cpl. Heather Lynch, a spokesperson for the state excise police, later told IndyStar the “moratorium” applied to all CBD product seizures with less than 0.3 percent THC, regardless of the store type. She attributed the decision to “differing legal opinions, arising after the fact, that related to the legality of CBD products in Indiana.”

“Any product that contains above 0.3 percent THC is clearly illegal,” Lynch said. “The gray area is 0.3 percent or less and presence of cannabidiol.”

Despite the questions surrounding the confiscations, Lynch said none of the seized products has been returned to store owners. She said products would be held until further lab testing and legal analysis.

Shelton, the Happy Daze owner, said he hasn’t heard anything at all from excise police since his products were removed two months ago. He estimated the store turned away 400 CBD customers.

“Most of the people we sold it to are very, very elderly, chronically in pain, people with cancer or that are epileptic,” Shelton said. “So it was very disheartening to tell those people. You had people crying in your shop.”

He recently decided to restock his shelves with some CBD products, but he remains fearful that excise police will shift their opinion once again and come back for his new inventory.

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Jeff Shelton, co-owner of Happy Daze, a smoke shop which offers cannabidiol oil, also known as CBD, Indianapolis, Thursday, September 7, 2017. The oil is used by a variety of people, and medical testing is being done to determine its efficacy in treating seizures, and pain. (Photo: Robert Scheer/IndyStar)

Those who advocated for the state’s new cannabidiol registry said they are shocked about the scope of the seizures.

“How were you able to go and conduct these raids if you weren't sure of the legality?” said Barrett, whose son’s seizures were dramatically reduced when she started mail-ordering CBD four years ago.

A spokesman for Indiana State Police, who operate separately from excise police, said the department has not cited or arrested anyone for possessing CBD.

But in June, troopers received training about the new HEA 1148 that indicated the only defense for possession of CBD was to be a part of the CBD registry.

State police then clarified in an August email to troopers that the 2014 industrial hemp law effectively legalized CBD oil.

“Keep this information in mind in the event you encounter such products in the course of your duties, and remember these products are lawful to purchase and possess,” the email read.

Head, one of the bill’s sponsors, said the conflicting stances from two different state law enforcement agencies were “not surprising.”

“A lot of departments of state government work in their own offices and apart from each other,” Head said. “You get different lawyers offering different interpretations.”

But for lawmakers like Lucas, the shifting legal interpretations and confusing enforcement actions are a serious problem.

“The left hand doesn’t seem to know what the right hand is doing,” he said.

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Happy Daze, a smoke shop which offers cannabidiol oil, also known as CBD, Indianapolis, Thursday, September 7, 2017. The oil is used by a variety of people, and medical testing is being done to determine its efficacy in treating seizures, and pain. (Photo: Robert Scheer/IndyStar)

A coming debate

Although the CBD busts have stopped for now, the finger pointing is only just beginning.

Some lawmakers blame the Alcohol and Tobacco Commission for the confusion and inconsistencies surrounding CBD. House Speaker Brian Bosma, R-Indianapolis, and Senate leader David Long, R-Fort Wayne, already slammed the agency earlier this year for allowing Rickers convenience stores to sell cold beer — a move lawmakers said thwarted the will of the legislature.

“I understand mistakes can be made. But you have to own up to mistakes,” Lucas said. “If they’re going to sweep this under the rug and they think they’re above the law and can act with impunity, maybe they have too much power.”

Stephanie Wilson, Holcomb’s spokeswoman, said the ATC is already doing its job by halting CBD seizures. The rest is up to the state legislature.

“Our state excise police are focused on enforcing the law as it is,” Wilson said. “If there is ambiguity in existing law, that’s for the legislature to decide and act upon if there’s a need.”

The two men who carried the recent CBD legislation said cleaning up previous legislation is not uncommon and admitted lawmakers would likely need to revisit the issue.

“You know we almost always do,” Friend said. “We probably should address it in some way so that we can make it a little easier for the public and a little easier for law enforcement to understand what the proper role on each side is.”

One factor likely to weigh heavily in the debate is the formal attorney general’s opinion that Hill and his staff are formulating.

Hill, a Republican, is a staunch opponent of marijuana legalization, even for medical purposes. When IndyStar disclosed earlier this year that a secretive investment group with ties to some of the Statehouse’s biggest power brokers was looking for ways to take advantage of marijuana legalization, Hill penned an op-ed piece lambasting such efforts and warning of the drug’s health dangers.

“Anything that would legalize marijuana, he’s against that,” said Brilliant, Hill’s spokesman. “But this is somewhat separate in that the legislature has legalized limited use of this CBD oil and there are specific questions related to that.”

Other states are also struggling with how to handle CBD products. Eighteen states have recently legalized limited use of CBD products, according to the National Conference of State Legislatures. But there also has been some push back. A Republican attorney general in Nebraska, for example, recently declared CBD products illegal in that state.

“I think we’re trying to thread the needle too finely with a lot of this stuff,” said Lucas, who plans to introduce a medical marijuana bill when the legislative session begins in January. “I think the silver lining in this is that it is going to force the state to revisit the issue and consider expanding it to help even more people. I’m going to try to use that to my advantage.”

Any broad marijuana legalization push, however, faces long odds given that GOP leaders traditionally have opposed any such efforts.

Still, moderate Republican lawmakers could be forced to make a difficult decision on the CBD product already sold in stores. If they vote to decisively legalize such products, they risk being seen as pro-marijuana to their conservative voter base. But if they vote to make CBD illegal, they could be seen as unsympathetic to businesses and Hoosiers with dire health problems.

The parents of epileptic children, meanwhile, are struggling to remain optimistic about the state’s ability to find the right solution.

“You see how squirrely Indiana is,” said Bennett. “We can’t trust our state to do the right thing.”